Ruling No.: 22-14-1606
Application No.: B-2021-26
BUILDING CODE COMMISSION
IN THE MATTER OF Subsection 24(1) of the Building Code Act, S.O. 1992, c. 23, as amended.
AND IN THE MATTER OF Sentence 3.8.2.1.(5) of Division B of Regulation 332/12, as amended, (the “Building Code”).
AND IN THE MATTER OF an application by Nathan Hallman, for the resolution of a dispute with Michael Seiling, Chief Building Official, to determine whether the proposal not to provide a barrier-free path of travel for 15% of all suites of residential occupancy in a new Group C major occupancy building containing 8 residential units, that is 3 storeys in building height and 156 m2 in building area, provides sufficiency of compliance with Sentence 3.8.2.1.(5) of Division B of the Building Code at 293 King Street East, Kitchener, Ontario.
APPLICANT Nathan Hallman
Hallman Building Co. Ltd.
West Montrose, Ontario
RESPONDENT Michael Seiling
Chief Building Official
City of Kitchener
Kitchener, Ontario
PANEL Stephen Wong, Chair
Elektra Vrachas
James Eduful
PLACE via Teams Video Conference
DATE OF HEARING July 6, 2022
DATE OF RULING July 6, 2022
APPEARANCES Steve Burrows
Facet Design Studio Ltd.
Waterloo, Ontario
Agent for the Applicant
Matt Ruetz
MBO – Technical Specialist
City of Kitchener
Kitchener, Ontario
Designate for the Respondent
Robert Schipper
Manager of Building
City of Kitchener
Kitchener, Ontario
Designate for the Respondent
RULING
1. Particulars of Dispute
The Applicant has received a Building Permit under the Building Code Act, 1992 to construct a three storey mixed-use building at 293 King Street East, Kitchener, Ontario.
The subject building is a new, three storey, mixed-use building and has a building area of 156 m2. The building contains multiple major occupancies with Group A, Division 2 occupancy on the ground floor, and Group C residential occupancies on the second and third floors. There are a total of eight residential suites. The ground floor is of noncombustible construction whereas the upper two floors are of combustible construction. The ground floor is equipped with a sprinkler system and all floors are equipped with a fire alarm system.
The construction in dispute involves the Group C residential major occupancies located on the second and third floors. More specifically, the dispute between the two parties centers on whether the suites of residential occupancy located on the second and third floors are exempt from the Building Code’s requirement to provide not less than 15% of all suites of residential occupancy with a barrier-free path of travel from the suite entrance door into the suite’s specific rooms and spaces.
2. Provisions of the Building Code in Dispute
Sentence 3.8.2.1.(5) of Division B
In a Group C major occupancy apartment building, not less than 15% of all suites of residential occupancy shall be provided with a barrier-free path of travel from the suite entrance door into the following rooms and spaces that shall be located at the same level as the barrier-free path of travel:
(a) at least one bedroom,
(b) at least one bathroom conforming to Sentence (6),
(c) a kitchen or kitchen space, and
(d) a living room or space.
(See Appendix A)
3. Applicant’s Position
The Agent for the Applicant (the “Agent”) submitted that only the entrance storey of the subject building needs to have a barrier-free path of travel and therefore has been designed to be accessible as required by Sentence 3.8.2.1.(1)(a) of Division B of the Building Code. The Agent also stated that there was no passenger elevator or other type of passenger elevating device proposed for the new building and that the only means of access to the second and third floor levels was by a single common staircase.
The Agent stated that the barrier-free path of travel required for the entrance storey was not required to extend to and throughout the Group C, residential occupancies located on the second and third floors of the building because of Clauses 3.8.2.1.(1)(b) and 3.8.2.1.(2)(b) and Sentence 3.8.2.1.(3) of the Building Code. The Agent submitted that these three code provisions provide exemptions for requiring a barrier-free path of travel to and throughout all normally occupied floor areas.
Sentence 3.8.2.1.(1) states:
(1) Except as permitted by Sentence (3), a barrier-free path of travel from the entrances required by Sentences 3.8.1.2.(1) and (3) to be barrier-free shall be provided,
(a) throughout the entrance storey,
(b) except as permitted by Sentence (2), to and throughout all normally occupied floor areas and rooftop amenity spaces
Clause 3.8.2.1.(2)(b) states:
(2) A barrier-free path of travel described in Clause (1)(b) is not required to extend,
(b) to Group C or Group D occupancies that are in floor areas in a building that,
(i) is three or fewer storeys in building height, and
(ii) has a building area not exceeding 600 m2,
The Agent further explained that Sentence 3.8.2.1.(3) exempts the storeys above the entrance storey from having to extend a barrier-free path of travel to the suites of residential occupancy that are in storeys other than the entrance storey.
Sentence 3.8.2.1.(3) states:
(3) A barrier-free path of travel described in Sentence (1) is not required to extend,
(i) to suites of residential occupancy that are in storeys other than the entrance storey and that have all entrance doors at floor levels that are not required to have a barrier-free path of travel
The Agent argued that, since a barrier-free path of travel is exempt from extending from the ground floor to the second and third floors, Sentence 3.8.2.1.(5) is not applicable to the Group C major occupancies because all residential suites in the building are located on the second and third floor levels and no residential suites are on the entrance storey where a barrier-free path of travel is required to be provided.
4. Respondent’s Position
The Designate for the Respondent (the “Designate”) stated that Sentence 3.8.2.1.(5) of Division B of the Building Code does not provide any exemptions and as such, the subject building requires at least 15% of the proposed apartments to be provided with a barrier-free path of travel from the suite entrance door into the suite’s specific rooms and spaces. The Designate further submitted that the building department had consulted with the Ministry of Municipal Affairs and Housing, Buildings and Development Branch, and received verbal confirmation that there were no exemptions to Sentence 3.8.2.1.(5) of Division B of the Building Code.
The Designate agreed with the Agent that the proposed building is required to have a barrier-free path of travel throughout the entrance storey as per Clause 3.8.2.1.(1)(a) of Division B of the Building Code.
The Designate submitted that the proposed building design complies with Clause 3.8.2.1.(2)(b) of Division B of the Building Code and does not require a barrier-free path of travel to extend to the second and third floors.
5. Commission Ruling
It is the decision of the Building Code Commission that the proposal not to provide a barrier-free path of travel from the suite entrance door into not less than 15% of all suites of residential occupancy, in a new mixed use building with Group C major occupancy containing 8 residential units, that is 3-storeys in building height and 156 m2 in building area, does not provide sufficiency of compliance with Sentence 3.8.2.1.(5) of Division B of the Building Code at 293 King Street East, Kitchener, Ontario.
6. Reasons
i) The Commission heard testimony that the building has a barrier-free path of travel throughout the entire entrance storey as required by Clause 3.8.2.1.(1)(a), and that this barrier-free path of travel does not extend to the second and third floors as per exemption given in Clause 3.8.2.1.(2)(b). Both parties agreed that Clause 3.8.2.1.(1)(a) and Clause 3.8.2.1.(2)(b) of Division B of the Building Code are not in dispute.
ii) The Commission notes that there are no exemptions given for Sentence 3.8.2.1.(5) of Division B of the Building Code which requires not less than 15% of all suites of residential occupancy to be provided with a barrier-free path of travel from the suite entrance door into specific rooms and spaces within the suite.
Therefore, It is the Commission’s opinion that Sentence 3.8.2.1.(5) of Division B of the Building Code is applicable to the subject building and sufficiency of compliance with this Sentence has not been demonstrated. The Commission notes that Sentence 3.8.2.1.(5) is intended for requiring not less than 15% of all suites of residential occupancy to be designed to meet accessibility requirements.
iii) The Commission notes that the barrier-free design requirements of Section 3.8 of Division B of the Building Code are not limited to persons who use a wheelchair but may include persons who have limited mobility and do not require the use of wheelchairs, or may include persons with sensory disabilities.
Although access to the residential suites located on the second and third floors of the subject building is provided by a single common staircase, the Commission is of the opinion that persons using walking aids or assisted by another person, and persons with hearing or vision impairment assisted by service animals, may still be able to climb stairs.
iv) It is the Commission’s opinion that the Applicant’s proposed design does not meet the objectives and functional statements attributed to Sentence 3.8.2.1.(5) of Division B of the Building Code.
Dated at the City of Toronto this 6th day in the month of July in the year 2022 for application number B-2021-26.
Stephen Wong, Chair
Elektra Vrachas
James Eduful